Shabna (through next friend and guardian mother Shabna) & Muhammed Naeem & Suhara @ Suhara Mustaffa v. K.K. Anoop Kumar & Mohammed Rafi & The Manager, New India Insurance Co., Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 08TH DAY OF JANUARY 2020 / 18TH POUSHA, 1941** ## **MACA.No.2903 OF 2018** **AGAINST THE AWARD IN OPMV 1213/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** **1 SHABNA AGED 24 YEARS W/O. LATE SAIFUDHEEN, THANATHPARAMBIL HOUSE, CHAKKARAPADAM DESOM, PERINJANAM VILLAGE AND P.O., KODUNGALLUR TALUK, THRISSUR DISTRICT. 2 MINOR MUHAMMD NAEEM, AGED 5 YEARS S/O.LATE SAIFUDHEEN, THANATHPARAMBIL HOUSE, CHAKKARAPADAM DESOM, PERINJANAM VILLAGE AND P.O. KODUNGALLUR TALUK, THRISSUR DISTRICT, REP BY NEXT FRIEND AND GUARDIAN MOTHER SHABNA, THANATHPARAMBIL HOUSE, CHAKKARAPADAM DESOM, PERINJANAM, VILLAGE AND P.O, KODUNGALLUR TALUK, THRISSUR DISTRICT. 3 SUHARA @ SUHARA MUSTAFFA, AGED 70 YEARS W/O. MUSTAFFA AND M/O.LATE SAIFUDHEEN,THANATHPARAMBIL HOUSE, CHAKKARAPADAM DESOM, PERINJANAM VILLAGE AND P.O. KODUNGALLUR TALUK, THRISSUR DISTRICT. BY ADV. SRI.V.BINOY RAM** **RESPONDENT/S:** ..2.. ## **MACA.No.2903 OF 2018** - **1 K.K.ANOOP KUMAR S/O. KRISHNAN, KOVILAPARAMBIL, ITTITHARA HOUSE, LOKAMALESWARAM DESOM, VILLAGE, AND P.O., KODUNGALLUR TALUK, PIN - 680 664.** - **2 MOHAMMED RAFI,** - **S/O.MOHAMMEDUNNY,PALATHUM VEETTIL HOUSE, CHETTUVA DESOM, ENGANDIYUR VILLAGE AND P.O. KOTTA ROAD, THRISSUR DISTRICT,PIN-680615.** - **3 THE MANAGER,** **NEW INDIA INSURANCE CO,LTD, BRANCH OFFICE, 2ND FLOOR, K.K,ABDU BUILDING, ROOM NO.IV/1145,VADAKKE NADA, KODUNGALLUR ,PIN680664.** **R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MACA.No.2903 OF 2018** ..3.. ## **JUDGMENT** The appellants are the claimants in O.P.(MV)No. 1213 of 2016 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Saifudheen, husband of the 1[st] appellant, father of the 2[nd] appellant, and son of the 3[rd] appellant, in a motor accident which occurred on 25.05.2016, while he was riding a motorcycle bearing registration No. KL-47/B-3533. At the place of accident, the motorcycle was hit by a bus bearing registration No. KL-47/B-9990, driven by the 2[nd] respondent, owned by the 1[st] respondent and insured with the 3[rd] respondent. In the accident, he sustained fatal injuries, who succumbed to the injuries at the place of accident itself. Alleging that the accident occurred due to rash and negligent driving of the bus by the 2[nd] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.1,03,25,000/- under various heads, which was limited to Rs.1,00,00,000/-, for the purpose of payment of Court Fee. ## **MACA.No.2903 OF 2018** **==> picture [18 x 9] intentionally omitted <==** 2. Before the Tribunal, the 2[nd] respondent driver of the bus and the 1[st] respondent owner remained absent and they were set ex parte. The 3[rd] respondent insurer filed written statement admitting the policy coverage of the bus involved in the accident; however, denying negligence alleged against the 2[nd] respondent driver. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition and it was contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A16 were marked on the side of the appellants/claimants. Exts.B1 was marked on the side of the respondents. Both sides have not chosen to adduce any oral evidence. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the bus by the 2[nd] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to ## **MACA.No.2903 OF 2018** **==> picture [17 x 8] intentionally omitted <==** indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.54,13,776/- together with interest at the rate 8% per annum from the date of petition, i.e., from 21.10.2016, till the date of deposit, with proportionate cost and directed the 3[rd] respondent insurer to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellants/ claimants are before this Court in this appeal. 6. During the course of arguments, the learned counsel for the appellants would submit that the compensation awarded by the Tribunal under the heads funeral expenses; loss of dependency; loss of estate; loss of consortium to the 1[st] respondent is just and reasonable and in tune with the law laid down by the Apex Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** and **Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram [(2018) 18 SCC 130]** and therefore, challenge made in this ## **MACA.No.2903 OF 2018** **==> picture [18 x 8] intentionally omitted <==** appeal is confined to compensation awarded by the Tribunal under other heads. 7. In **Sarla Verma v. Delhi Transport Corporation** **[(2009) 6 SCC 121]** the Apex Court laid down the principles governing determination of quantum of compensation in the case of death in a motor accident. The Apex Court held that, the compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just. Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by following the well settled steps, namely, ascertaining the multiplicand (annual contribution to the family), the multiplier and calculation of loss of dependency by ## **MACA.No.2903 OF 2018** **==> picture [17 x 8] intentionally omitted <==** multiplying the multiplicand by such multiplier. 8. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , a Constitution Bench of the Apex Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance. Though the discretion vested in the Tribunal is quite wide, yet it is obligatory on the part of the ## **MACA.No.2903 OF 2018** **==> picture [18 x 8] intentionally omitted <==** Tribunal to be guided by the expression, i.e., just compensation. 9. Towards loss of consortium the 1[st] appellant wife is awarded a sum of Rs. 40,000/-. No compensation is awarded under the head loss of consortium to the 2[nd] appellant, son of the deceased and also to the 3[rd] appellant, the mother of the deceased. 10. In **Rajesh [(2013) 9 SCC 54]** a Three-Judge Bench of the Apex Court granted Rs.25,000/- towards funeral expenses, Rs.1,00,000/- towards loss of consortium and Rs.1,00,000/- towards loss of care and guidance for minor children. 11. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench of the Apex Court held that the head relating to loss of care and guidance for minor children does not exist. Though **Rajesh** refers to **Santosh Devi v. National Insurance Company Limited [(2012) 6 SCC 421]** , it does not seem to follow the same. The conventional and traditional **MACA.No.2903 OF 2018** **==> picture [18 x 9] intentionally omitted <==** heads cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The Court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the Tribunals and Courts are likely to be unguided. Therefore, the reasonable figures on conventional heads, namely, **loss of estate** , **loss of consortium** and **funeral expenses** should be **Rs.15,000/-** , **Rs.40,000/-** and **Rs.15,000/-** respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. The Apex Court observed that, ## **MACA.No.2903 OF 2018** ..10.. it would be condign that the amounts that have quantified as above should be enhanced on percentage basis **in every three years** and the enhancement should be at the rate of **10% in a span of three years** , which will bring in consistency in respect of those heads. 12. In **Santosh Devi v. Mahaveer Singh [(2018) 9 SCC 146]** a Three-Judge Bench of the Apex Court granted compensation on conventional heads, in terms of the figures standardised by the Constitution Bench in the year 2017, in **Pranay Sethi** , to the wife and children of one Puran Chand, who died in a motor accident, which occurred on **30.12.1992** . 13. In **Sureshchandra Bagmal Doshi v. New India Assurance Company Limited [(2018) 15 SCC 649]** the Apex Court granted the figures on conventional heads standardised by the Constitution Bench in the year 2017, in **Pranay Sethi** , i.e., Rs.15,000/- as loss of estate; Rs.40,000/towards loss of consortium; and Rs.15,000/- as funeral expenses to the parents [appellants before the Apex Court], ## **MACA.No.2903 OF 2018** ..11.. who lost their only daughter in a motor accident which occurred on **16.08.1998** . In the said decision, Rs.40,000/granted in **Pranay Sethi** towards loss of consortium was granted to the appellants, who are the **parents** of the deceased, towards **loss of love and affection** . Paragraphs 1 and 14 of the said decision read thus; “ **1.** Fate can be cruel. This is a tragic case where the only daughter of a lawyer husband and a doctor wife, who got married early and unfortunately became a widow also at a young age, died in a vehicular accident, which took place on **16.8.1998** . The claim of the parents (appellants herein) in respect of this unfortunate demise forms the subject matter of the present appeal. xxx xxx xxx **14.** Now coming to the last aspect, i.e., the conventional heads, in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , it has been standardised at Rs.15,000 for loss of estate; Rs.40,000 towards loss of consortium (in the present case loss of love and affection) and Rs.15,000 towards funeral expenses. The total amount, thus, would be Rs.70,000, which as per the said judgment is capable of being enhanced @ 10 percent in the span of every three years. However, we are still within the window of three years.” “underline supplied” ## **MACA.No.2903 OF 2018** ..12.. 14. In **Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram [(2018) 18 SCC 130]** , after referring to the decision in **Pranay Sethi** , the Apex Court held that in legal parlance, 'consortium' is a compendious term which encompasses 'spousal consortium', 'parental consortium' and 'filial consortium'. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. **Spousal consortium** is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the **surviving spouse** for loss of 'company, society, co-operation, affection, and aid of the other in every conjugal relation'. **Parental consortium** is granted to the **child** upon the premature death of a parent, for loss of 'parental aid, protection, affection, society, discipline, guidance and training'. **Filial consortium** is the right of the **parents** to compensation in the case of an accidental death of a child. An ## **MACA.No.2903 OF 2018** **==> picture [22 x 9] intentionally omitted <==** accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their **love** , **affection** , companionship and their role in the family unit. 15. In **Magma General Insurance** the Apex Court held that consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognised that the value of a child’s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions, therefore, permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the **love** , **affection** , care and companionship of the deceased child. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In a case where parents ## **MACA.No.2903 OF 2018** **==> picture [22 x 9] intentionally omitted <==** have lost their **minor child** , or **unmarried son or daughter** , the parents are entitled to be awarded loss of consortium under the head of **filial consortium** . Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Motor Vehicles Act. The Apex Court held further that, the amount of compensation to be awarded as consortium will be governed by the **principles** of awarding compensation under 'loss of consortium' as laid down in **Pranay Sethi** . 16. In **Magma General Insurance** , the deceased was aged 24 years, who was engaged in the business of manufacturing 'namkeen products', who died in a motor accident which occurred on 01.12.2013. The **father** , **brother** and **sister** of the deceased filed claim petition under Section 166 of the Motor Vehicles Act. The Claims Tribunal did not award any compensation to the **brother** of the deceased, as he could not be considered to be a dependent. Compensation was awarded to the **father** and **unmarried sister** of the **MACA.No.2903 OF 2018** **==> picture [22 x 9] intentionally omitted <==** deceased, who were held to be dependents. The father and sister of the deceased filed appeal before the Punjab and Haryana High Court for enhancement of the compensation awarded by the Claims Tribunal. The High Court found that the Claims Tribunal used the wrong principle for application of multiplier. The multiplier ought to have been taken on the basis of the age of the deceased and not that of his father. The High Court, while re-assessing the compensation granted a sum of Rs.1,00,000/- (Rs.50,000/- x 2) towards loss of love and affection to the father and unmarried sister of the deceased. The insurer filed S.L.P. before the Apex Court contending, inter alia, that the father and sister of the deceased could not be considered as dependants, and were not entitled to compensation. In case of death of bachelor, only the mother could be considered to be a dependant. The grant of Rs.1,00,000/- on account of loss of love and affection, and Rs.25,000/- towards funeral expenses is erroneous. It was contended that only Rs.30,000/- could have been awarded as **MACA.No.2903 OF 2018** **==> picture [22 x 8] intentionally omitted <==** per the judgment in **Pranay Sethi** . [i.e., loss of estate - Rs.15,000/- and funeral expenses – Rs.15,000/-] The Apex Court held that, considering that the deceased was living in a village, where he was residing with his aged father, who was about 65 years old, and an unmarried sister, the High Court correctly considered them to be dependants of the deceased, and made a deduction of 1/3[rd] towards personal expenses of the deceased. [Para.16 @ page 135 of SCC] The Apex Court found that the deceased was a bachelor, whose mother had **pre-deceased** him. The father of the deceased was about 65 years old and his sister was unmarried. The deceased was **contributing** a part of his meagre income to the family for their sustenance and survival. Therefore, the Apex Court held that the father and unmarried sister of the deceased would be entitled to compensation under his dependants. [Para.18 @ page 136 of SCC] Dealing with the contention of the insurer that the High Court had wrongly awarded Rs.1,00,000/towards loss of love and affection, and Rs.25,000/- towards ## **MACA.No.2903 OF 2018** ..17.. funeral expenses, the Apex Court, after quoting Para.52 of the decision in **Pranay Sethi** , decreased the compensation under the head funeral expenses from Rs.25,000/- to Rs.15,000/-. However, the amount awarded under the head loss of love and affection was maintained. After explaining the concept of **spousal consortium** , **parental consortium** and **filial consortium** , the Apex Court deem it appropriate to award the father and unmarried sister of the deceased, an amount of Rs.40,000/- each for loss of filial consortium. 17. In view of the law laid down by the Constitution Bench of the Apex Court in **Pranay Sethi** , which was followed in **Santhosh Devi** and **Suresh Chandra Bagmaldoshi** referred to supra, the compensation payable under the conventional heads of loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, 40,000/- and Rs.15,000/- respectively. The aforesaid figures quantified by the Apex Court should be enhanced on percentage basis, at the rate of 10%, in a span of every three years. ## **MACA.No.2903 OF 2018** ..18.. 18. In view of the law laid down by the Apex Court in **Magma General Insurance Company Ltd** ., after referring to the decision in **Pranay Sethi** , the surviving spouse is entitled for spousal consortium; children of the deceased are entitled for parental consortium; and parents of a deceased child, who died in a motor accident, are entitled for filial consortium. The amount of compensation that has to be awarded will be governed by the principles of awarding compensation under the head loss of consortium, as laid down in **Pranay Sethi** . 19. In **Indian Bank v. ABS Marine Products (P) Ltd. [(2006) 5 SCC 72]** one of the contentions raised was that, any direction issued by the Apex Court in exercise of power under Article 142 of the Constitution of India to do proper justice and the reasons, if any, given for exercising such power, cannot be considered as law laid down by that Court under Article 141. It was also pointed out that, other Courts do not have the power similar to that conferred on the Apex Court under Article 142 and any attempt to follow the exercise of ## **MACA.No.2903 OF 2018** ..19.. such power will lead to incongruous and disastrous results. The Apex Court left open that question, observing as follows; "Though there appears to be some merit in the first respondent's submission, we do not propose to examine that aspect." Though the said question was left open, the Apex Court observed as follows in Para.26 of the judgment; "26. ….... Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that Courts have followed not the law declared, but the exemption/ relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/ relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court. The Courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts, **MACA.No.2903 OF 2018** ..20.. exercising power under Article 142. …..." 20. In **State of Punjab v. Rafiq Masih [(2014) 8 SCC 883]** a Three-Judge Bench of the Apex Court affirmed the view taken in **ABS Marine Products' case (supra)** holding that, the directions issued under Article 142 do not constitute a binding precedent unlike Article 141 of the Constitution of India. They are direction issued to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Apex Court held further that, the directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. Paras.11 to 13 of the judgment read thus; "11. Article 136 of the Constitution of India was legislatively intended to be exercised by the Highest Court of the Land, with scrupulous adherence to the settled judicial principle well established by precedents ## **MACA.No.2903 OF 2018** ..21.. in our jurisprudence. Article 136 of the Constitution is a corrective jurisdiction that vests a discretion in the Supreme Court to settle the law clearly and make the law operational to make it a binding precedent for the future instead of keeping it vague. In short, it declares the law, as under Article 141 of the Constitution. 12. Article 142 of the Constitution is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the Statute. It is a power that gives preference to equity over law. It is a justice oriented approach as against the strict rigors of the law. The directions issued by the Court can normally be categorised into one, in the nature of moulding of relief and the other, as the declaration of law. 'Declaration of Law' as contemplated in Article 141 of the Constitution: is the speech express or necessarily implied by the Highest Court of the land. This Court in the case of **Indian Bank v. ABS Marine Products (P) Ltd. [(2006) 5 SCC 72]** , **Ram Pravesh Singh v. State of Bihar [(2006) 8 SCC 381]** and in **State of U.P. v. Neeraj Awasthi [(2006) 1 SCC 667]** , has expounded the principle and extolled the power of Article 142 of the Constitution of India to new heights by laying down that the directions issued under Article 142 do not constitute a binding precedent unlike Article 141 of the Constitution of India. They are direction issued to do ## **MACA.No.2903 OF 2018** ..22.. proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Court has compartmentalised and differentiated the relief in the operative portion of the judgment by exercise of powers under Article 142 of the Constitution as against the law declared. The directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. This Court on the qui vive has expanded the horizons of Article 142 of the Constitution by keeping it outside the purview of Article 141 of the Constitution and by declaring it a direction of the Court that changes its complexion with the peculiarity in the facts and circumstances of the case. 13. Therefore, in our opinion, the decisions of the Court based on different scales of Article 136 and Article 142 of the Constitution of India cannot be best weighed on the same grounds of reasoning and thus in view of the aforesaid discussion, there is no conflict in the views expressed in the first two judgments and the latter judgment." 21. In **Magma General Insurance Company Ltd.** , **MACA.No.2903 OF 2018** ..23.. the Apex Court maintained the compensation awarded by the High Court at the rate of Rs.50,000/- to the father and unmarried sister of the deceased towards loss of love and affection. However, the compensation under the head funeral expenses was decreased from Rs.25,000/- to Rs.15,000/-, after quoting para 52 of the decision in **Pranay Sethi** . After explaining the concept of spousal consortium, parental consortium and filial consortium, the Apex Court awarded the father and unmarried sister of the deceased an amount of Rs.40,000/- each for loss of filial consortium. 22. As already noticed, the compensation that has to be awarded to the surviving spouse towards spousal consortium; to the children of the deceased towards parental consortium; or to the parents of the deceased child towards filial consortium, is for loss of **love and affection** and such other matters. In such circumstances, once the surviving spouse is awarded compensation towards spousal consortium; or the children of the deceased are awarded compensation towards **MACA.No.2903 OF 2018** **==> picture [23 x 9] intentionally omitted <==** parental consortium; or the parents of the deceased child are awarded compensation towards filial consortium, they are not entitled for award of further compensation under the head loss love and affection, as it would result in duplication or overlapping of compensation under the relevant heads. 23. The concept of spousal consortium to the surviving spouse; parental consortium to the children of the deceased; and filial consortium to the parents of the deceased child laid down by the Apex Court in **Magma General Insurance Company Ltd.** does not speak anything as to the right of **siblings** to get compensated under the head loss of consortium. In **Magma** , after noticing the fact that the mother of the deceased had pre-deceased him, his father was aged 65 years old, his sister was unmarried, and the deceased was **contributing** a part of his meagre income to the family for their sustenance and survival, the Apex Court granted a sum of Rs.40,000/- as compensation to unmarried sister of the deceased under the head filial consortium, after maintaining ## **MACA.No.2903 OF 2018** **==> picture [22 x 9] intentionally omitted <==** the compensation (Rs.50,000/- x 2) awarded by the High Court towards loss of love and affection, which can only be treated as a direction issued by the Apex Court in exercise of its powers under Article 142 of the Constitution of India to do proper justice and the exercise of such power cannot be considered as law laid down by the Apex Court under Article 141 of the Constitution of India. 24. In view of the law laid down by the Apex Court in **Pranay Sethi** and **Magma General Insurance Company Ltd.** referred to supra, the 2[nd] appellant, son of the deceased, is granted a sum of Rs.40,000/- towards parental consortium and 3[rd] appellant, the mother of the deceased is granted a sum of Rs.40,000/-, under the head filial consortium, resulting additional compensation of **Rs.80,000/-** (40,000 + 40,000). 46. The Tribunal awarded Rs.15,000/- as compensation towards pain and suffering of the deceased. 47. In **Jyni and others v. Raphel P.T. and others [2016 (2) KHC 870]** a Division Bench of this Court held that, **MACA.No.2903 OF 2018** **==> picture [23 x 8] intentionally omitted <==** death in an accident is generally the result of violent impact on the body resulting in serious injuries causing severe pain. The magnitude of the ordeal may vary from case to case depending upon the nature of injuries sustained. In cases of instantaneous deaths also pain and suffering is invariably present, as in the case of survival for hours or days. In cases of instantaneous death as well as cases where the deceased was unconscious between the time of accident and the time of his death, some notional amount is payable under the head pain and suffering. A slightly higher amount can be awarded under this head, if the death is not instantaneous. Therefore, a conventional amount in the range of Rs.5,000/- to Rs.15,000/could be awarded under the head pain and suffering in such cases. 48. In the instant case, the deceased succumbed to the injuries on the date of accident iteslf. Considering the said fact, the compensation awarded by the Tribunal towards pain and suffering of the deceased is scaled down to Rs. 5,000/-, ## **MACA.No.2903 OF 2018** **==> picture [22 x 9] intentionally omitted <==** resulting an **excess payment** of **Rs.10,000/-** (15,000 – 5,000). 49. Tribunal awarded no compensation under the head damage to clothing. The accident is of the year 2016. Considering the said fact, a sum of **Rs.1,500/-** is granted under the head damage to clothing and articles. 50. In the result, the appellants 2 and 3/claimants 2 and 3 are entitled for payment of an additional compensation of **Rs.71,500/-** (Rupees seventy one thousand five hundred only) [(80,000 + 1,500) - 10,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The additional compensation granted in this appeal shall be apportioned among appellants 2 and 3 equally. The 3[rd] respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellants/claimants towards Balance Court Fee **MACA.No.2903 OF 2018** **==> picture [23 x 8] intentionally omitted <==** and Legal Benefit Fund. The insurer shall also deduct the liability of the appellants/claimants towards additional Court fee in this appeal, in view of the amendment made to sub-rule (3) of Rule 397 of the Kerala Motor Vehicles Rules, 1989 with effect from 16.01.2015 and the same shall be deposited before this Court. Registry shall calculate the additional Court Fee payable in this appeal and a statement to that effect shall also be enclosed along with the certified copy of this judgment. The disbursement of additional compensation to the appellants 2 and 3/claimants 2 and 3 shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The additional compensation payable to the 2[nd] appellant/2[nd] claimant, who is minor, shall be deposited in fixed deposit in any Nationalised Bank till he attains majority. The 3[rd] appellant shall provide her Bank account details (attested copy of the relevant page of the Bank Passbook having details **MACA.No.2903 OF 2018** **==> picture [23 x 9] intentionally omitted <==** of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer within one month from the date of certified copy of this judgment This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN** **JUDGE** kkj